P. v. Gonzalez

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Filed 3/30/21 P. v. Gonzalez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS ARMANDO GONZALEZ,
Defendant and Appellant.
E074653
(Super.Ct.No. RIF117693)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C.
Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
In 2006, a jury found defendant and appellant Luis Armando Gonzalez guilty of
attempted murder with premeditation and deliberation (Pen. Code,1 §§ 664, 187,
subd. (a)), along with other crimes. In 2019, Senate Bill No. 1437 (Reg. Sess. 2017-
2018) went into effect and now allows a defendant convicted of murder to petition a court
under section 1170.95 to have the murder conviction vacated. Defendant filed a petition
under section 1170.95. The trial court dismissed the petition because he was convicted of
attempted murder, not murder.
Defendant appeals, arguing the provisions of Senate Bill No. 1437 should apply to
defendants convicted of attempted murder. We disagree and affirm the trial court’s
order.
PROCEDURAL BACKGROUND
Defendant was charged by amended information with attempted premeditated
murder (§§ 664, 187, subd. (a), count 1), robbery (§ 211, count 2), and grand theft of a
firearm (§ 487, subd; (d)(2), count 3). As to each count, the information alleged that he
participated as a principal, knowing that another principal was armed with a firearm.
(§ 12022, subd. (a)(1).)
A jury found defendant guilty on all counts and found the firearm enhancements
true. On December 29, 2006, a trial court sentenced him to life in state prison with the
possibility of parole on count 1, the low term of three years on count 2, and the midterm
1 All further statutory references will be to the Penal Code unless otherwise noted.

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of two years on count 3 stayed pursuant to section 654. The court sentenced him to one
year on each of the firearm enhancements but stayed the enhancements on counts 1 and 3.
Thus, his total sentence was life with the possibility of parole plus four years.
Defendant appealed, and this court reversed the conviction on count 3 but
otherwise affirmed the judgment. (People v. Lopez (Nov. 24, 2008, E041719)
[nonpub.].)
On January 25, 2019, defendant filed a petition for resentencing under section
1170.95, in propria persona, alleging that he was convicted of first or second degree
murder pursuant to the felony murder rule or the natural and probable consequences
doctrine, and that he could not now be convicted of first or second degree murder because
of the amendments to sections 188 and 189. He also requested appointment of counsel.
The People moved to strike defendant’s petition, arguing that Senate Bill No. 1437 is
unconstitutional and that Senate Bill No. 1437 does not apply to attempted murder. The
trial court appointed a public defender to represent defendant, and counsel filed a reply
brief arguing that defendant had set forth a prima facie case for relief.
On November 22, 2019, the court held a hearing on the petition. The People
argued that the petition should be dismissed because it involved attempted murder.
Defense counsel objected. The court stated that People v. Munoz2 was the controlling
authority and dismissed the petition.
2 The court was apparently referring to People v. Munoz (2019) 39 Cal.App.5th
738 (Munoz), review granted November 26, 2019, S258234.

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DISCUSSION
Senate Bill No. 1437 Does Not Apply to Attempted Murder
Defendant argues the court erred in dismissing his petition because Senate Bill No.
1437 is constitutional, and it applies to convictions for both murder and attempted
murder. He also contends his petition alleged a prima facie case for relief. The People
do not dispute the constitutionality of Senate Bill No. 1437, but argue that defendant is
ineligible for relief under section 1170.95 since he was not convicted of murder. We
agree and conclude that the court properly dismissed his petition.
A. Senate Bill No. 1437
On September 30, 2018, the Governor signed Senate Bill No. 1437. (People v.
Martinez (2019) 31 Cal.App.5th 719, 722-723 (Martinez).) “The legislation, which
became effective on January 1, 2019, addresses certain aspects of California law
regarding felony murder and the natural and probable consequences doctrine by
amending Penal Code sections 188 and 189, as well as by adding Penal Code section
1170.95, which provides a procedure by which those convicted of murder can seek
retroactive relief if the changes in law would affect their previously sustained
convictions.” (Id. at p. 722-723.) “Senate Bill [No.] 1437 was enacted to ‘amend the
felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.’ ” (Id. at p. 723.)

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Senate Bill No. 1437 accomplished that purpose by substantively amending
section 188 (defining malice) and section 189 (defining the degrees of murder). “Now, to
be convicted of murder, a principal must act with malice aforethought; malice can no
longer ‘be imputed to a person based solely on his or her participation in a crime.’ ” (In
re R.G. (2019) 35 Cal.App.5th 141, 144; see § 188, subd. (a)(3).) Amended section 189
limits first degree murder liability based on a felony murder theory to a person who:
(1) was the actual killer; (2) although not the actual killer, intended to kill and assisted the
actual killer in the commission of first degree murder; or (3) was a major participant in
the underlying felony who acted with reckless indifference to human life. (§ 189,
subd. (e).) “Senate Bill [No.] 1437 thus ensures that murder liability is not imposed on a
person who did not act with implied or express malice, was not the actual killer, did not
act with the intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Munoz, supra, 39 Cal.App.5th at pp.
749-750.)
Senate Bill No. 1437 also added section 1170.95, which creates a procedure by
which persons convicted of felony murder or murder under a natural and probable
consequences theory may seek resentencing. (Martinez, supra, 31 Cal.App.5th at
pp. 722-723.) Subdivision (a) of section 1170.95 provides: “(a) A person convicted of
felony murder or murder under a natural and probable consequences theory may file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or indictment was filed

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against the petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subd. (a), italics added.)
B. The Court Properly Dismissed the Petition
We follow the reasoning in Munoz, supra, 39 Cal.App.5th 738, as the trial court
did, as well as People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November
13, 2019, S258175 (Lopez), and find that Senate Bill No. 1437 does not apply to
attempted murder. (Munoz, at pp. 753-754; Lopez, at pp. 1104-1105.) In Lopez, the
appellate court concluded the “Legislature’s obvious intent to exclude attempted murder
from the ambit of the Senate Bill [No.] 1437 reform” was evidenced by the language of
section 1170.95 itself, as it expressly limits its application to murder convictions. (Lopez,
at pp. 1104-1105.)
The Lopez court further observed: “The plain language meaning of Senate Bill
[No.] 1437 as excluding any relief for individuals convicted of attempted murder is fully
supported by its legislative history.” (Lopez, supra, 38 Cal.App.5th at p. 1105.) The
court stated: “When describing the proposed petition process, the Legislature
consistently referred to relief being available to individuals charged in a complaint,
information or indictment ‘that allowed the prosecution to proceed under a theory of first

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degree felony murder, second degree felony murder, or murder under the natural and
probable consequences doctrine’ and who were ‘sentenced to first degree or second
degree murder.’ [Citation.] In addition, when discussing the fiscal impact and assessing
the likely number of inmates who may petition for relief, the Senate Committee on
Appropriations considered the prison population serving a sentence for first and second
degree murder and calculated costs based on that number. [Citation.] The analysis of
potential costs did not include inmates convicted of attempted murder.” (Ibid.)
In Lopez, the defendants argued that, “by redefining the elements of murder,
Senate Bill [No.] 1437 impliedly eliminated the natural and probable consequences
doctrine as a basis for finding an aider and abettor guilty of attempted murder . . . .”
(Lopez, supra, 38 Cal.App.5th at p. 1105.) The court found the argument unavailing and
explained, as follows: the defendants’ “premise of this implied repeal argument is that,
generally to be guilty of an attempt to commit a crime, the defendant must have
specifically intended to commit all the elements of that offense. Since a conviction for
murder now requires proof of malice except as specified in section 189, subdivision (e),
and malice may not be imputed to a person based solely on his or her participation in an
underlying crime, they reason, the natural and probable consequences theory of aider and
abettor liability is no longer viable. [¶] [The defendants’] premise, that to be guilty of an
attempt an accomplice must have shared the actual perpetrator’s intent, is correct as to
direct aider-and-abettor liability [citations], but it is inapplicable to offenses charged
under the natural and probable consequences doctrine, which is based on a theory of
vicarious liability, not actual or imputed malice. [Citation.] As a matter of statutory

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interpretation, Senate Bill [No.] 1437’s legislative prohibition of vicarious liability for
murder does not, either expressly or impliedly, require elimination of vicarious liability
for attempted murder.” (Lopez, at pp. 1105-1106.)
Agreeing with Lopez, the court in Munoz, supra, 39 Cal.App.5th 738 held that
Senate Bill No. 1437 plainly and unambiguously applies only to murder because “section
1170.95 . . . speaks only in terms of murder, not attempted murder.” (Munoz, at p. 754.)
As the Munoz court noted, “[w]here the words of the statute are clear, we are not at
liberty to add to or alter them to accomplish a purpose that is not apparent on the face of
the statute or in its legislative history.” (Id. at p. 755.)
Other appellate courts have concluded that despite attempted murder not being
enumerated in Senate Bill No. 1437, the legislation must be interpreted to include
attempted murder. (See People v. Larios (2019) 42 Cal.App.5th 956 (Larios), review
granted Feb. 26, 2020, S259983; People v. Medrano (2019) 42 Cal.App.5th 1001
(Medrano), review granted March 11, 2020, S259948; see also People v. Sanchez (2020)
46 Cal.App.5th 637 (Sanchez), review granted June 10, 2020, S261768.) Larios and
Medrano held that Senate Bill No. 1437’s changes to sections 188 and 189 preclude
imposition of vicarious liability under the natural and probable consequences doctrine if
the charged offense requires malice aforethought. (Larios, at p. 966; Medrano, at
p. 1013.) As the Larios court explained, section 188, as amended, stated that “ ‘malice
shall not be imputed to a person based solely on his or her participation in a crime’ ”
(Larios, at pp. 967-968), and contained “no exceptions for attempted murder, which
indisputably requires express malice” (id. at p. 967). Based on section 188, the Larios

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court determined Senate Bill No. 1437 modified accomplice liability for both murder and
attempted murder. (Larios, at p. 968.) Accordingly, because the amended statutes
prohibit malice from being imputed to a defendant who aids and abets a target offense
without the intent to kill, the natural and probable consequences doctrine is no longer a
viable theory of accomplice liability for attempted murder. (Larios, at p. 966; Medrano,
at p. 1013.)
However, Larios and Medrano found that even if Senate Bill No. 1437 applied to
attempted murder convictions on direct appeal, based on the unambiguous language in
section 1170.95, a defendant convicted of attempted murder could not file a petition
pursuant to section 1170.95. (Larios, supra, 42 Cal.App.5th at pp. 969-970; Medrano,
supra, 42 Cal.App.5th at pp. 1017-1018.) Larios and Medrano agreed with the reasoning
of Lopez and Munoz “that the relief provided in section 1170.95 is limited to certain
murder convictions and excludes all other convictions, including a conviction for
attempted murder.” (Larios, at p. 970; see Medrano, at p. 1018.) Larios and Medrano
concluded, “there [was] a rational basis for the Legislature’s decision to grant relief
pursuant to section 1170.95 only to murder convictions and exclude attempted murder
convictions based on judicial economy and the financial costs associated with reopening
both final murder and final attempted murder convictions.” (Larios, at p. 970; see
Medrano, at p. 1018.) We agree and find that section 1170.95 does not allow a defendant
who has been convicted of attempted murder to apply for relief.
Defendant acknowledges that Larios and Medrano hold that the petitioning
procedure in section 1170.95 is not available to defendants convicted of attempted

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murder. However, he claims that portion of those cases was incorrectly decided, pointing
out that it would be incongruous to conclude that the changes to section 188, as amended
by Senate Bill No. 1437, apply to the crime of attempted murder, but a defendant is
nevertheless not entitled to the sentencing relief provided for by the same statute. He
argues that section 1170.95 “does, on its face, reflect the inclusion of attempted murder
as the basis for vacating a defendant’s prior convictions.” However, by section 1170.95’s
plain terms, only persons “convicted of felony murder or murder under a natural and
probable consequences theory may file a petition . . . .” (§ 1170.95, subd. (a), italics
added.) “The repeated references to murder convictions in section 1170.95, as opposed
to attempted murder convictions, make clear that Senate Bill 1437’s ameliorative benefit
was meant to reach only the completed offense of murder, not the distinct offense of
attempted murder.” (People v. Alaybue (2020) 51 Cal.App.5th 207, 223 (Alaybue).)
Defendant further argues that construing Senate Bill No. 1437 to apply to murder,
but not attempted murder, will result in the absurd consequence of a defendant who aided
and abetted an assault in which a coparticipant committed a murder would be entitled to a
reduction of his or her murder conviction to an assault, but a defendant who similarly
aided and abetted an assault in which the coparticipant committed the lesser crime of
attempted murder would, under the natural and probable consequences doctrine, remain
guilty of attempted murder, rather than assault. The court in Munoz rejected a similar
argument. The defendant in that case argued that construing Senate Bill No. 1437 to
apply only to murder would result in “ ‘absurdly disparate’ sentencing consequences for
the same conduct, with persons convicted of the lesser offense of attempted murder

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serving longer sentences than those convicted of murder.” (Munoz, supra, 39
Cal.App.5th at p. 756, fn. omitted.)
The Munoz court recognized that the language of a statute should not be given a
literal meaning if doing so would result in absurd consequences that the Legislature did
not intend, or would frustrate the purpose of the legislation as a whole. However, it
concluded that the Legislature apparently intended to exclude attempted murder from
Senate Bill No. 1437’s reach “and the consequences of that legislative choice are not
clearly absurd.” (Munoz, supra, 39 Cal.App.5th at p. 757.) The court pointed to “[t]he
statute’s uncodified statement of legislative findings and declarations,” and noted the
“repeated references to ‘murder,’ and murder alone,” as well as “the statement that
amendment of the natural and probable consequences doctrine was necessary ‘as it relates
to murder.’ ” (Ibid.)
The Munoz court also reasoned that it would not be absurd to abide by the plain
language of the statute, since “it is far from clear that interpreting Senate Bill 1437 to
apply to convictions for murder, but not attempted murder, will always, or typically,
result in longer sentences for the latter.” (Munoz, supra, 39 Cal.App.5th at pp. 757-758.)
The court noted that “the basic punishment for attempted murder is far less severe than
that imposed for murder” and applying the statute’s plain language does not “undermine
the primary legislative goal of making punishment commensurate with culpability,
because the punishment for attempted murder was already, prior to Senate Bill 1437’s
enactment, less than that imposed for murder.” (Id. at p. 758; see also Alaybue, supra, 51
Cal.App.5th at p. 224 [“the Legislature could have reasonably concluded that the need to

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address sentencing reform was more appropriately directed at persons convicted of
murder as opposed to attempted murder . . . because the punishment for attempted murder
is generally far less than the punishment imposed for murder”].)
Moreover, the Munoz court observed that the “ ‘absurdity exception requires much
more than [a] showing that troubling consequences may potentially result if the statute’s
plain meaning were followed or that a different approach would have been wiser or
better,’ ” and, further, that the absurdity doctrine should be used only in extreme cases.
(Munoz, supra, 39 Cal.App.5th at p. 758; see People v. Morales (2019) 33 Cal.App.5th
800, 806.)
We note that the punishment for first degree murder is either death, life in prison
without the possibility of parole, or an indeterminate term of 25 years to life. (§ 190,
subds. (a), (e).) The punishment for second degree murder is an indeterminate term of 15
years to life. (Ibid.) In contrast, attempted murder is punishable by a determinate term of
five, seven, or nine years in prison. (§ 664, subd. (a).) And even the punishment for
premeditated attempted murder—defendant’s conviction—is life with the possibility of
parole after seven years. (§§ 664, subd. (a), 3046, subd. (a)(1).)
“Because the punishment for murder is [generally] so much more severe than the
punishment for attempted murder, the Legislature may have wished to limit Senate Bill
1437’s ameliorative reforms to those instances where it perceived the disconnect between
culpability and punishment to be most glaring. It is not our place to judge the wisdom,
fairness, or logic of the Legislature’s decision to omit attempted murder from Senate Bill
1437’s ambit. We do not find the plain meaning of Senate Bill 1437 to be absurd, much

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less so absurd in its results that we would be permitted to disregard the literal language
used in the statute.” (Alaybue, supra, 51 Cal.App.5th at p. 225.)
In his reply brief, defendant claims that the requirement in section 1170.95,
subdivision (a)(1), regarding the filing of a complaint or information “does not require
that the defendant actually be charged with first- or second- degree murder. Rather, it
must merely permit the prosecution to ‘proceed’ under a ‘theory’ of felony murder or
murder under the natural and probable consequences doctrine.” He then asserts, “[t]hat is
manifestly the case here.” Defendant’s claim overlooks the beginning portion of section
1170.95, subdivision (a), which expressly states that “[a] person convicted of felony
murder or murder under a natural and probable consequences theory may file a petition
. . . to have the petitioner’s murder conviction vacated and to be resentenced on any
remaining counts when all of the following conditions apply: . . .” Defendant was not
convicted of murder.
Ultimately, we agree with the reasoning and holding of the courts in Lopez and
Munoz that Senate Bill No. 1437 does not apply to defendants convicted of attempted
murder. The court properly dismissed defendant’s petition.

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DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.

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